Discrimination based on disability and the duty to accommodate: Information for housing providers

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The Ontario Human Rights Code

The Ontario Human Rights Code (the Code) is the law that provides for equal rights and opportunities, and freedom from discrimination. The Code recognizes the dignity and worth of every person in Ontario. It applies to the social areas of employment, housing, goods, facilities and services, contracts, and membership in unions, trade or professional associations.

People with disabilities have the right to be free from discrimination in housing (“accommodation”). The Code applies to every part of buying or renting housing. This includes private, social, supportive and co-operative housing. When renting a place to live, the Code covers:

applying to rent a unit

tenant rules and regulations

repairs and maintenance

using related services and facilities

your general enjoyment of the place you rent

evictions.

People with disabilities are a diverse group, and experience disability, impairment and societal barriers in many different ways. Disabilities are often “invisible” and episodic, with people sometimes experiencing periods of wellness and periods of disability. All people with disabilities have the same rights to equal opportunities under the Code, whether their disabilities are visible or not.

“Disability” is to be interpreted broadly and includes past, present and perceived conditions.

Discrimination

Discrimination against people with disabilities is often linked to “ableism” (attitudes in society that devalue and limit the potential of people with disabilities), prejudicial attitudes, negative stereotyping, and stigma.

Discrimination in housing may happen when a person experiences negative treatment or impact because of their disability. Discrimination does not have to be intentional. And, a person’s disability needs to be only one factor in the treatment they received for discrimination to have taken place.

People with disabilities who also identify with other Code grounds (such as sex, race or age) may be distinctly disadvantaged when they try to access housing. Stereotypes may exist that are based on combinations of these identities, placing people at unique disadvantage.

Example: Women with disabilities experience unique forms of discrimination. They may be singled out as targets for sexual harassment and sexual violence in housing due to a perception that they are more vulnerable and unable to protect themselves.

Forms of discrimination

Discrimination may take many different forms. It can happen when housing providers specifically exclude people with disabilities from receiving housing.

Example: In one case, a human rights tribunal found that the respondents willfully and recklessly discriminated against a woman who was blind when they cancelled an apartment viewing without notifying her, later refused to let her enter the unit, and generally treated her rudely. The tribunal found that the respondents discouraged the woman from renting the apartment, after learning she was blind and had a guide dog, and told her the area was “unsafe” for her.[1]

Discrimination can also happen when housing providers withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate reason. This discrimination is often based on negative attitudes, stereotypes and bias.

Discrimination may also happen “indirectly.” It may be carried out through another person or organization.

Example: A housing provider indirectly discriminates by instructing a rental housing agency it has hired to screen out prospective tenants who have disabilities that may require accommodations.

People associated with persons with disabilities are also protected from discrimination and harassment. This could include family, friends, or someone advocating on a person’s behalf.

Discrimination is often subtle. It may not be likely that discriminatory remarks will be made directly. Subtle forms of discrimination can usually only be detected after looking at all of the circumstances of a situation to see if a pattern of behaviour exists. Individual acts themselves may be unclear or explained away, but when viewed as part of a larger picture, may lead to an inference that discrimination based on a Code ground was a factor in the treatment a person received.

Sometimes, seemingly neutral rules, standards, policies, practices or requirements have a negative effect on people who have disabilities. This may lead to “adverse effect” discrimination.

Harassment

Harassment happens when someone shows a vexatious (which means distressing or annoying) pattern of doing or saying something based on a person’s disability that they know, or ought to know, is unwelcome.

Example: An Ontario human rights tribunal found that a landlordengaged in a vexatious course of conduct to control the life of a woman with cerebral palsy, as both a tenant and as a person. Among other things, the landlord entered the woman’s apartment when she was not there, turned off the hallway light when she was partly down the stairs, and banged repeatedly on her ceiling. The landlord was also found to have made verbal slurs regarding the woman’s disability.[2]

Harassment could include:

slurs, name-calling or pejorative nicknames based on disability

graffiti, images or cartoons depicting people with disabilities in a negative light

comments ridiculing people because of disability-related characteristics

inappropriately disclosing someone’s disability to people who do not need to know

repeatedly excluding people from the social environment, or “shunning”

circulating offensive material about people with disabilities by email, text, the Internet, etc.

Poisoned environment

A poisoned environment may be created when unwelcome comments or conduct are widespread in housing, causing a hostile or oppressive atmosphere for one or more people from a Code-protected group. Although the definition of harassment refers to “repeated” actions or comments, sometimes a single remark or action can be so serious that it results in a poisoned environment.

Example: The HRTO found that several members of a non-profit housing cooperative were subjected to “egregious and persistent” harassment and a poisoned environment when an unknown person posted “18 vulgar and incredibly vicious messages” within the co-op that related to disability and other grounds protected by the Code. The HRTO found that while the co-op was not responsible for the harassment, it was responsible for failing to address the harassment adequately. In particular, the co-op “did not take the issue seriously, did not act with urgency and completely failed to communicate with the [co-op members].”[3]

Systemic discrimination

Systemic or institutional discrimination consists of attitudes, patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization or sector, and that create or perpetuate a position of relative disadvantage for people with disabilities. The attitudes, behaviour, policies or practices appear neutral on the surface but nevertheless have an adverse effect or exclusionary impact on people with disabilities.

Reprisal

It is also against the Code for a person to be punished or threatened with punishment because they try to enforce their rights under the Code (for example, by making a complaint). This is called reprisal (or “payback”).

Designing inclusively and removing barriers

People with disabilities face many kinds of barriers every day. These could be attitude, communication, physical and systemic barriers. Housing providers should identify and remove barriers voluntarily instead of waiting to answer individual accommodation requests or complaints.

Example: In designing its rental housing buildings, a property management company hires a design expert to ensure that all physical structures are built according to the principles of inclusive design. This step ensures that the rental units are accessible to people with physical disabilities as well as to families with small children and older people.

Effective inclusive design reduces the need for people to ask for individual accommodation. Housing providers should use the principles of inclusive design when creating policies, programs, procedures, standards, requirements and facilities.

Negative attitudes about people with disabilities can be barriers too. Taking steps to prevent ableism will help promote respect and dignity, and help people with disabilities to fully take part in community life.

Duty to accommodate

Under the Code, housing providers have a duty to accommodate the needs of people with disabilities to the point of undue hardship, to make sure they have equal opportunities, equal access and can enjoy equal benefits. The goal of accommodation is to allow people to equally benefit from and take part in housing.

Example: A tenant in a rental unit develops arthritis. She requests that doorknobs in her suite and in common areas such as the laundry room be changed from round knobs that are difficult to grip to handles that are suitable for people with arthritis. The landlord willingly makes this change as it is not an undue hardship to do so. It will also benefit other tenants with disabilities in the building, as well as people who are aging.

Housing providers and others may need to change their rules, procedures, policies and requirements to allow for equal access and equal opportunities.

Example: In one case, a housing co-op sought to evict an occupant for failing to perform the two hours of volunteer work each month required by the co-op’s by-law, even though she had provided a doctor’s note that said she was incapable of performing this work for medical reasons. Even with the note, the co-op sought further medical details of her condition, which she refused to provide. The Ontario Divisional Court stated that the co-op had a duty to respect the rights of its occupants under the Ontario Human Rights Code and to accommodate the needs of an occupant with a disability, to the point of undue hardship.[4]

Three key principles drive the duty to accommodate:

respect for dignity

individualization, and

integration and full participation.

The steps taken to assess an accommodation (the “procedural” part of the duty to accommodate) are just as important as the accommodation that is provided (the “substantive” part of the duty to accommodate).

A person who needs a disability-related accommodation must:

make accommodation needs known to the best of their ability, preferably in writing, so that the person responsible for accommodation can make the requested accommodation

answer questions or provide information about relevant restrictions or limitations, including information from health care professionals

take part in discussions about possible accommodation solutions

co-operate with any experts whose assistance is required to manage the accommodation process or when information is needed

meet agreed-upon performance standards and requirements once accommodation is provided

work with the accommodation provider on an ongoing basis to manage the accommodation process.

Housing providers must:

be alert to the possibility that a person may need an accommodation even if they have not made a specific or formal request

accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise

get expert opinion or advice where needed (but not as a routine matter)

take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions

keep a record of the accommodation request and action taken

communicate regularly and effectively with the person, providing updates on the status of the accommodation and planned next steps

maintain confidentiality

limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request

consult with the person to determine the most appropriate accommodation

implement accommodations in a timely way, to the point of undue hardship

Sometimes, a person with a disability cannot identify that they need accommodation. Housing providers must try to help a person who is clearly unwell, or is thought to have a disability. They must ask if the person has needs related to a disability and offer assistance and accommodation.

Example: A tenant starts showing that he is having real difficulty maintaining his apartment, to the point where major health and safety risks are starting to arise. The property manager perceives that this is happening because the person may have a disability. The property manager asks to meet with the tenant and explains the kinds of accommodation measures that may be available to support tenants.

However, housing providers are not expected to try to diagnose illness or “second-guess” a person’s disability.

Forms of accommodation

Many different accommodation methods and techniques will respond to the unique needs of people with disabilities. Many accommodations can be made easily, and at low cost. Where putting the best solution in place right away may result in “undue hardship” because of significant costs or health and safety factors, housing providers still have a duty to look at and take next-best steps that would not result in undue hardship. Such steps should be taken only until better solutions can be put in place or phased in.

Depending on a person’s individual needs, examples of accommodation in housing may include:

helping someone fill out application forms (e.g. for social or supportive housing)

adjusting tenant selection criteria (such as using a guarantor when other information, such as credit history or rental history, is not available)

modifying deadlines (such as deadlines to report income changes in social and supportive housing)

modifying ways that information is communicated to tenants

establishing a list of contact supports to call in emergency situations

working with outside professionals to address someone’s needs, if agreed to by the tenant

considering someone’s disability as a mitigating factor when addressing behaviour that would otherwise warrant imposing sanctions

allowing transfers between units.

Medical information

When asking for accommodation, the type of information that people may generally be expected to provide includes:

that the person has a disability

the limitations or needs associated with the disability

whether the person can perform the essential requirements of being a tenant, resident, etc., with or without accommodation

the type of accommodation that is needed to allow the person to access the housing and fulfill any essential requirements of being a tenant, resident, etc.

Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy, while still giving the housing provider enough information to make the accommodation.

Generally, the housing provider does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed. In rare situations where a person’s accommodation needs are complex, challenging or unclear, the person may be asked to co-operate by providing more information, up
to and including a diagnosis. In such situations, the housing provider must be able to clearly justify why the information is needed. However, wherever possible, a housing provider must make genuine efforts to provide needed accommodations without requiring a person to disclose a diagnosis, or otherwise provide medical information that is not absolutely necessary.

Preventing and responding to discrimination

Under the Code, housing providers must make sure their organizations are free from discriminatory or harassing behaviour. Housing providers violate the Code when they directly or indirectly, intentionally or unintentionally infringe the Code, or when they authorize, condone or adopt behaviour that is contrary to the Code.

Organizations must take steps to address negative attitudes, stereotypes and stigma to make sure they do not lead to discriminatory behaviour toward people with disabilities.

Education on human rights works best alongside a strong proactive strategy to prevent and remove barriers to equal participation, and effective policies and procedures for addressing human rights issues that do arise. A complete strategy to prevent and address human rights issues should include: